finding that Columbia University’s maintenance of a website and internet message board, on which one of its professors posted an article that criticized the Texas plaintiff, was insufficient to confer personal jurisdiction in Texas over the university or the professor, because the “article written by Lidov about Revell contains no reference to Texas, nor does it refer to the Texas activities of Revell, and it was not directed at Texas readers as distinguished from readers in other states”
How later courts described this case
- finding that Columbia University’s maintenance of a website and internet message board, on which one of its professors posted an article that criticized the Texas plaintiff, was insufficient to confer personal jurisdiction in Texas over the university or the professor, because the “article written by Lidov about Revell contains no reference to Texas, nor does it refer to the Texas activities of Revell, and it was not directed at Texas readers as distinguished from readers in other states”
- holding that sliding scale used to evaluate internet contacts is still applicable in defamation case, in spite of defamation cause of action’s “unique features,” concluding that sliding scale is compatible “with the ‘effects’ test of Calder v. Jones[, 465 U.S. 783, 104 S. Ct. 1482 (1984),] for intentional torts,” and stating, “we must evaluate the extent of [the interactivity between parties on internet “bulletin board”] as well as [appellant’s] arguments with respect to Calder”
- holding that a Texas court lacked personal jurisdic- tion over a nonresident defendant because the article “contains no reference to Texas, nor does it refer to the Texas activities of [the plaintiff], and it was not directed at Texas readers as distinguished from readers in other states.”
- finding that, although “the maintenance of a website is, in a sense, a continuous presence everywhere in the world,” the contacts of an online journal were not “substantial” because it received only 17 and then 18 subscriptions from forum state residents
Written by the judges who cited it.
The opinion
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-10521
OLIVER “BUCK” REVELL,
Plaintiff-Appellant,
versus
HART G.W. LIDOV, an individual; BOARD OF TRUSTEES OF COLUMBIA
UNIVERSITY IN THE CITY OF NEW YORK, a foreign corporation (Columbia
University); COLUMBIA UNIVERSITY SCHOOL OF JOURNALISM, an agency
and/or Department of Columbia University in the City of New York,
Defendants-Appellees.
Appeal from the United States District Court
For the Northern District of Texas
December 31, 2002
Before HIGGINBOTHAM, WIENER, and BENAVIDES, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
Oliver “Buck” Revell sued Hart G.W. Lidov and Columbia
University for defamation arising out of Lidov’s authorship of an
article that he posted on an internet bulletin board hosted by
Columbia. The district court dismissed Revell’s claims for lack of
personal jurisdiction over both Lidov and Columbia. We affirm.
I
Hart G.W. Lidov, an Assistant Professor of Pathology and
Neurology at the Harvard Medical School and Children’s Hospital,
wrote a lengthy article on the subject of the terrorist bombing of
Pan Am Flight 103, which exploded over Lockerbie, Scotland in 1988.
The article alleges that a broad politically motivated conspiracy
among senior members of the Reagan Administration lay behind their
wilful failure to stop the bombing despite clear advance warnings.
Further, Lidov charged that the government proceeded to cover up
its receipt of advance warning and repeatedly misled the public
about the facts. Specifically, the article singles out Oliver
“Buck” Revell, then Associate Deputy Director of the FBI, for
severe criticism, accusing him of complicity in the conspiracy and
cover-up. The article further charges that Revell, knowing about
the imminent terrorist attack, made certain his son, previously
booked on Pan Am 103, took a different flight. At the time he
wrote the article, Lidov had never been to Texas, except possibly
to change planes, or conducted business there, and was apparently
unaware that Revell then resided in Texas.
Lidov has also never been a student or faculty member of
Columbia University, but he posted his article on a website
maintained by its School of Journalism. In a bulletin board
section of the website, users could post their own works and read
the works of others. As a result, the article could be viewed by
members of the public over the internet.
Revell, a resident of Texas, sued the Board of Trustees of
Columbia University, whose principal offices are in New York City,
and Lidov, who is a Massachusetts resident, in the Northern
District of Texas. Revell claimed damage to his professional
2
reputation in Texas and emotional distress arising out of the
alleged defamation of the defendants, and sought several million
dollars in damages. Both defendants moved to dismiss for lack of
personal jurisdiction under Federal Rule of Civil Procedure
12(b)(2). The district court granted the defendants’ motions, and
Revell now appeals.
II
A
Our question is whether the district court could properly
exercise personal jurisdiction over Hart Lidov and Columbia
University, an issue of law we review de novo.1 The plaintiff
bears the burden of establishing jurisdiction, but need only
present prima facie evidence.2 We must accept the plaintiff’s
“uncontroverted allegations, and resolve in [his] favor all
conflicts between the facts contained in the parties’ affidavits
and other documentation.”3 In considering a motion to dismiss for
lack of personal jurisdiction a district court may consider
“affidavits, interrogatories, depositions, oral testimony, or any
combination of the recognized methods of discovery.”4
1
Felch v. Transportes Lar-Mex SA De CV, 92 F.3d 320, 324 (5th Cir. 1996).
2
Kelly v. Syria Shell Petroleum Dev. B.V., 213 F.3d 841, 854 (5th Cir.
2000).
3
Alpine View Co. Ltd. v. Atlas Copco AB, 205 F.3d 208, 215 (5th Cir.
2000).
4
Stuart v. Spademan, 772 F.2d 1185, 1192 (5th Cir. 1985).
3
A federal district court sitting in diversity may exercise
personal jurisdiction over a foreign defendant if (1) the long-arm
statute of the forum state creates personal jurisdiction over the
defendant; and (2) the exercise of personal jurisdiction is
consistent with the due process guarantees of the United States
Constitution.5 Because Texas’s long-arm statute reaches to the
constitutional limits,6 we ask, therefore, if exercising personal
jurisdiction over Lidov and Columbia would offend due process.
The Due Process Clause of the Fourteenth Amendment permits a
court to exercise personal jurisdiction over a foreign defendant
when (1) “that defendant has purposefully availed himself of the
benefits and protections of the forum state by establishing
‘minimum contacts’ with the forum state; and (2) the exercise of
jurisdiction over that defendant does not offend ‘traditional
notions of fair play and substantial justice.’”7 Sufficient
minimum contacts will give rise to either specific or general
jurisdiction.8 “General jurisdiction exists when a defendant’s
contacts with the forum state are unrelated to the cause of action
but are ‘continuous and systematic.’”9 Specific jurisdiction
5
Latshaw v. Johnston, 167 F.3d 208, 211 (5th Cir. 1999).
6
Electrosource, Inc. v. Horizon Battery Techs., Ltd., 176 F.3d 867, 871
(5th Cir. 1999).
7
Mink v. AAAA Dev. LLC, 190 F.3d 333, 336 (5th Cir. 1999) (quoting Int’l
Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)).
8
Wilson v. Belin, 20 F.3d 644, 647 (5th Cir. 1994).
9
Mink, 190 F.3d at 336.
4
arises when the defendant’s contacts with the forum “arise from, or
are directly related to, the cause of action.”10
B
Answering the question of personal jurisdiction in this case
brings these settled and familiar formulations to a new mode of
communication across state lines. Revell first urges that the
district court may assert general jurisdiction over Columbia
because its website provides internet users the opportunity to
subscribe to the Columbia Journalism Review, purchase advertising
on the website or in the journal, and submit electronic
applications for admission.11
This circuit has drawn upon the approach of Zippo
Manufacturing Co. v. Zippo Dot Com, Inc.12 in determining whether
the operation of an internet site can support the minimum contacts
necessary for the exercise of personal jurisdiction.13 Zippo used
a “sliding scale” to measure an internet site’s connections to a
forum state.14 A “passive” website, one that merely allows the
owner to post information on the internet, is at one end of the
10
Lewis v. Fresne, 252 F.3d 352, 358 (5th Cir. 2001) (internal quotation
marks omitted).
11
The district court did not address Revell’s general jurisdiction
argument. It was made and we reach the issue. Singleton v. Wulff, 428 U.S. 106,
121 (1976).
12
952 F. Supp. 1119 (W.D. Pa. 1997).
13
Mink, 190 F.3d at 336.
14
Zippo, 952 F. Supp. at 1124.
5
scale.15 It will not be sufficient to establish personal
jurisdiction.16 At the other end are sites whose owners engage in
repeated online contacts with forum residents over the internet,
and in these cases personal jurisdiction may be proper.17 In
between are those sites with some interactive elements, through
which a site allows for bilateral information exchange with its
visitors. Here, we find more familiar terrain, requiring that we
examine the extent of the interactivity and nature of the forum
contacts.18
While we deployed this sliding scale in Mink v. AAAA
Development LLC, it is not well adapted to the general jurisdiction
inquiry, because even repeated contacts with forum residents by a
foreign defendant may not constitute the requisite substantial,
continuous and systematic contacts required for a finding of
general jurisdiction—in other words, while it may be doing business
with Texas, it is not doing business in Texas.19
Irrespective of the sliding scale, the question of general
jurisdiction is not difficult here. Though the maintenance of a
15
Id.
16
Id.
17
Id.
18
Id.
19
Access Telecom, Inc. v. MCI Telecomm. Corp., 197 F.3d 694, 717 (5th Cir.
1999); see also Bancroft & Masters, Inc. v. Augusta Nat’l Inc., 223 F.3d 1082,
1086 (9th Cir. 2000) (“[E]ngaging in commerce with residents of the forum state
is not in and of itself the kind of activity that approximates physical presence
within the state’s borders.”).
6
website is, in a sense, a continuous presence everywhere in the
world, the cited contacts of Columbia with Texas are not in any way
“substantial.”20
Columbia’s contacts with Texas are in stark contrast to the
facts of the Supreme Court’s seminal case on general jurisdiction,
Perkins v. Benguet Consolidated Mining Co.21 In Perkins, a
Philippine corporation temporarily relocated to Ohio.22 The
corporation’s president resided in Ohio, the records of the
corporation were kept in Ohio, director’s meetings were held in
Ohio, accounts were held in Ohio banks, and all key business
decisions were made there.23 Columbia’s internet presence in Texas
quite obviously falls far short of this standard.
Our conclusion also comports with the recent decision in Bird
v. Parsons,24 where the Sixth Circuit found Ohio courts lacked
general jurisdiction over a non-resident business that registered
domain names despite the fact that: (1) the defendant maintained a
website open for commerce with Ohio residents and (2) over 4000
Ohio residents had in fact registered domain names with the
20
See Wilson v. Belin, 20 F.3d 644, 650-51 (5th Cir. 1994) (finding no
personal jurisdiction over individual defamation defendants where the defendants
did not conduct regular business in Texas and did not make a substantial part of
their business decisions in Texas).
21
342 U.S. 437, 438 (1952).
22
Id. at 447-48.
23
Id.
24
289 F.3d 865 (6th Cir. 2002).
7
defendant.25 By contrast, Columbia, since it began keeping records,
never received more than twenty internet subscriptions to the
Columbia Journalism Review from Texas residents.26
C
Turning to the issue of specific jurisdiction, the question is
whether Revell has made out his prima facie case with respect to
the defendants’ contacts with Texas. Zippo’s scale does more work
with specific jurisdiction—the context in which it was originally
conceived.27
Revell urges that, given the uniqueness of defamation claims
and their inherent ability to inflict injury in far-flung
jurisdictions, we should abandon the imagery of Zippo. It is a
bold but ultimately unpersuasive argument. Defamation has its
unique features, but shares relevant characteristics with various
business torts.28 Nor is the Zippo scale, as has been suggested,
25
Id. at 873-74.
26
More precisely, there were 17 subscriptions by Texas residents in 2000
and 18 for the first two issues in 2001. R. at 305.
27
Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119, 1122 (W.D. Pa.
1997) (noting that the plaintiff conceded that only specific jurisdiction was at
issue in the case).
28
See Indianapolis Colts v. Metro. Balt. Football Club Ltd. P’ship, 34
F.3d 410, 411-12 (7th Cir. 1994).
8
in tension with the “effects” test of Calder v. Jones29 for
intentional torts,30 which we address in Part II.D.
For specific jurisdiction we look only to the contact out of
which the cause of action arises31—in this case the maintenance of
the internet bulletin board. Since this defamation action does not
arise out of the solicitation of subscriptions or applications by
Columbia, those portions of the website need not be considered.
The district court concluded that the bulletin board was
“Zippo-passive” and therefore could not create specific
jurisdiction. The defendants insist that Columbia’s bulletin board
is indistinguishable from the website in Mink. In that case, we
found the website would not support a finding of minimum contacts
because it only solicited customers, provided a toll-free number to
call, and an e-mail address.32 It did not allow visitors to place
orders online.33 But in this case, any user of the internet can
post material to the bulletin board. This means that individuals
send information to be posted, and receive information that others
have posted. In Mink and Zippo, a visitor was limited to
29
465 U.S. 783 (1984).
30
We need not decide today whether or not a “Zippo-passive” site could
still give rise to personal jurisdiction under Calder, and reserve this difficult
question for another time.
31
Lewis v. Fresne, 252 F.3d 352, 358 (5th Cir. 2001).
32
Mink v. AAAA Dev. LLC, 190 F.3d 333, 336-37 (5th Cir. 1999).
33
Id. at 337.
9
expressing an interest in a commercial product. Here the visitor
may participate in an open forum hosted by the website.34
Columbia’s bulletin board is thus interactive, and we must evaluate
the extent of this interactivity as well as Revell’s arguments with
respect to Calder.
D
1
In Calder, an editor and a writer for the National Enquirer,
both residents of Florida, were sued in California for libel
arising out of an article published in the Enquirer about Shirley
Jones, an actress.35 The Supreme Court upheld the exercise of
personal jurisdiction over the two defendants because they had
“expressly aimed” their conduct towards California.36
The allegedly libelous story concerned the California
activities of a California resident. It impugned the
professionalism of an entertainer whose television career
was centered in California. The article was drawn from
California sources, and the brunt of the harm, in terms
both of respondent’s emotional distress and the injury to
her professional reputation, was suffered in California.
In sum, California is the focal point both of the story
and of the harm suffered.37
34
See, e.g., Barrett v. Catacombs Press, 44 F. Supp. 2d 717, 728 (E.D. Pa.
1999) (finding interactive internet newsgroups where defendant posted messages
in common cyberspace accessible to all but ultimately holding personal
jurisdiction could not be obtained).
35
Calder, 465 U.S. at 784-85.
36
Id. at 789.
37
Id. at 788-89 (emphasis added).
10
The Court also relied upon the fact that the Enquirer had its
largest circulation–over 600,000 copies–in California, indicating
that the defendants knew the harm of their allegedly tortious
activity would be felt there.38
2
Revell urges that, measured by the “effects” test of Calder,
he has presented his prima facie case for the defendants’ minimum
contacts with Texas. At the outset we emphasize that the
“effects” test is but one facet of the ordinary minimum contacts
analysis, to be considered as part of the full range of the
defendant’s contacts with the forum.39
We find several distinctions between this case and
Calder—insurmountable hurdles to the exercise of personal
jurisdiction by Texas courts. First, the article written by Lidov
about Revell contains no reference to Texas, nor does it refer to
the Texas activities of Revell, and it was not directed at Texas
readers as distinguished from readers in other states. Texas was
not the focal point of the article or the harm suffered, unlike
Calder, in which the article contained descriptions of the
California activities of the plaintiff, drew upon California
38
Id. at 789-90 (“And they knew that the brunt of that injury would be
felt by respondent in the State in which she lives and works and in which the
National Enquirer has its largest circulation.”).
39
Panda Brandywine Corp. v. Potomac Elec. Power Co., 253 F.3d 865, 869
(5th Cir. 2001).
11
sources, and found its largest audience in California.40 This
conclusion fits well with our decisions in other intentional tort
cases where the plaintiff relied upon Calder. In those cases we
stated that the plaintiff’s residence in the forum, and suffering
of harm there, will not alone support jurisdiction under Calder.41
We also find instructive the defamation decisions of the Sixth,
Third, and Fourth Circuits in Reynolds v. International Amateur
Athletic Federation,42 Remick v. Manfredy,43 and Young v. New Haven
Advocate,44 respectively.
In Reynolds a London-based association published a press
release regarding the plaintiff’s disqualification from
40
Calder, 465 U.S. at 788; see also Keeton v. Hustler Magazine, Inc., 465
U.S. 770, 777 (1984) (noting that the harm of a libelous publication is felt
where it is distributed).
41
See Panda Brandywine, 253 F.3d at 870 (“If we were to accept Appellants’
arguments, a nonresident defendant would be subject to jurisdiction in Texas for
an intentional tort simply because the plaintiff’s complaint alleged injury in
Texas to Texas residents regardless of the defendant’s contacts ....”); Southmark
Corp. v. Life Investors, Inc., 851 F.2d 763, 772-73 (5th Cir. 1988) (rejecting
application of Calder and describing the plaintiff’s decision to maintain its
principal place of business in the forum state as “a mere fortuity” that could
not support personal jurisdiction). But see Janmark, Inc. v. Reidy, 132 F.3d
1200, 1202 (7th Cir. 1997) (finding personal jurisdiction over a California
business proper under Calder on the basis that the defendant’s alleged
threatening of one of the plaintiff’s customers in New Jersey injured the
plaintiff, an Illinois business, in Illinois); IMO Indus., Inc. v. Kiekert AG,
155 F.3d 254, 263-65 (3d Cir. 1998) (recognizing circuit split between Janmark
and views of the First, Fourth, Fifth, Eighth, Ninth and Tenth Circuits and
adopting the majority view). We do not suggest that the analysis for defamation
claims under Calder should differ from that utilized in our other cases, but
merely provide further explication because this case is factually more similar
to Calder.
42
23 F.3d 1110 (6th Cir. 1994).
43
238 F.3d 248 (3d Cir. 2001).
44
– F.3d –, No. 01-2340, 2002 WL 31780988, at *1 (4th Cir. Dec. 13, 2002).
12
international track competition for two years following his failure
of a drug test.45 The plaintiff, an Ohio resident, claimed that the
alleged defamation had cost him endorsement contracts in Ohio and
cited Calder in support of his argument that personal jurisdiction
over the defendant in Ohio was proper.46 The court found
Calder inapposite because, inter alia, the allegedly defamatory
press release dealt with the plaintiff’s activities in Monaco, not
Ohio; the source of the report was a urine sample taken in Monaco
and analyzed in Paris; and the “focal point” of the release was not
Ohio.47 We agree with the Reynolds court that the sources relied
upon and activities described in an allegedly defamatory
publication should in some way connect with the forum if Calder is
to be invoked.48 Lidov’s article, insofar as it relates to Revell,
deals exclusively with his actions as Associate Deputy Director of
45
23 F.3d at 1112.
46
Id. at 1119-20.
47
Id. at 1120. The court also cited two distinctions arguably not present
in this case: that the plaintiff’s professional reputation was not centered in
Ohio, and that the defendant did not itself publish or circulate the report in
Ohio. Id. However, the defendant in Reynolds clearly knew that the plaintiff
was an Ohio resident, unlike Lidov. See Part II.D.3.
48
The Tenth Circuit has suggested that this is not a requirement of
Calder. In Burt v. Board of Regents of University of Nebraska, 757 F.2d 242
(10th Cir. 1985), vacated as moot, Connolly v. Burt, 475 U.S. 1063 (1986), the
court upheld the application of Calder to support personal jurisdiction in
Colorado where a University of Nebraska doctor had written unflattering and
allegedly defamatory letters about the plaintiff in response to requests from
Colorado hospitals, despite the fact that the content of the letters focused on
the plaintiff’s activities in Nebraska, not Colorado. Id. at 244-45. We find
more persuasive the view of Judge Seth, who remarked, in dissent, that this
represented “but half a Calder,” which requires both the harm to be felt in the
forum and that the forum be the focal point of the publication. Id. at 245-47
(Seth, J., dissenting).
13
the FBI—just as the offending press release in Reynolds dealt only
with a failed drug test in Monaco. It signifies that there is no
reference to Texas in the article or any reliance on Texas sources.
These facts weigh heavily against finding the requisite minimum
contacts in this case.
In Remick the plaintiff, a Pennsylvania lawyer, sued several
individuals for defamation arising out of two letters sent to the
plaintiff in Pennsylvania containing oblique charges of
incompetence and accusations that the plaintiff was engaged in
extortion of the defendants.49 The letters concerned the
termination of the plaintiff’s representation of one of the
defendants, a professional boxer.50 One of the two letters was read
by individuals other than the plaintiff when it was faxed to the
plaintiff’s Philadelphia office.51 The court held, however, that
since there was nothing in the letter to indicate that it was
targeted at Pennsylvania residents other than the plaintiff,
personal jurisdiction could not be obtained under Calder.52
Furthermore, the court noted that allegations that the charges in
the letter had been distributed throughout the “boxing community”
49
Remick, 238 F.3d at 257-58.
50
Id.
51
Id. at 257.
52
Id. at 259.
14
were insufficient, because there was no assertion that Pennsylvania
had a “unique relationship with the boxing industry, as
distinguished from the relationship in Calder between California
and the motion picture industry, with which the Calder plaintiff
was associated.”53
Similarly, in Young v. New Haven Advocate,54 two newspapers in
Connecticut posted on the internet articles about the housing of
Connecticut prisoners in Virginia that allegedly defamed a Virginia
prison warden. The Fourth Circuit held that Virginia could not
exercise personal jurisdiction over the Connecticut defendants
because “they did not manifest an intent to aim their websites or
the posted articles at a Virginia audience.”55 Following its
decision in ALS Scan, Inc. v. Digital Service Consultants,56 it
reasoned that “application of Calder in the Internet context
requires proof that the out-of-state defendant’s Internet activity
53
Id.; see also ESAB Group, Inc. v. Centricut, Inc., 126 F.3d 617, 625
(4th Cir. 1997) (finding Calder inapplicable where allegedly tortious business
activity was focused “more generally on customers located throughout the United
States and Canada without focusing on and targeting South Carolina”); Pavlovich
v. Superior Court, 29 Cal. 4th 262, 265-66 (2002) (rejecting the personal
jurisdiction of California courts in a trade secret infringement case over a
Texan who posted the offending computer code on a website).
54
– F.3d –, No. 01-2340, 2002 WL 31780988, at *1 (4th Cir. Dec. 13, 2002).
55
Id.
56
293 F.3d 707 (4th Cir. 2002).
15
is expressly directed at or directed to the forum state.”57 It
observed that more than simply making the news article accessible
to Virginians by defendants’ posting of the article on their
internet sites was needed for assertion of jurisdiction: “The
newspapers must, through the Internet postings, manifest an intent
to target and focus on Virginia readers.”58
As with Remick and Young, the post to the bulletin board here
was presumably directed at the entire world, or perhaps just
concerned U.S. citizens. But certainly it was not directed
specifically at Texas, which has no especial relationship to the
Pan Am 103 incident. Furthermore, here there is nothing to compare
to the targeting of California readers represented by approximately
600,000 copies of the Enquirer the Calder defendants knew would be
distributed in California, the Enquirer’s largest market.59
3
As these cases aptly demonstrate, one cannot purposefully
avail oneself of “some forum someplace”; rather, as the Supreme
57
Young, 2002 WL 31780988, at *5 (citing ALS, 293 F.3d at 714).
58
Id.
59
Calder v. Jones, 465 U.S. 783, 785 n.2 (1984).
16
Court has stated, due process requires that “the defendant’s
conduct and connection with the forum State are such that he should
reasonably anticipate being haled into court there.”60 Lidov’s
affidavit, uncontroverted by the record, states that he did not
even know that Revell was a resident of Texas when he posted his
article. Knowledge of the particular forum in which a potential
plaintiff will bear the brunt of the harm forms an essential part
of the Calder test.61 The defendant must be chargeable with
knowledge of the forum at which his conduct is directed in order to
reasonably anticipate being haled into court in that forum, as
Calder itself62 and numerous cases from other circuits applying
Calder confirm.63 Demanding knowledge of a particular forum to
which conduct is directed, in defamation cases, is not altogether
60
Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474 (1985).
61
Further evidence that the Calder defendants knew that the harm of their
conduct would be felt in California came from their knowledge that the
Enquirer enjoyed its largest circulation there. Id. at 789.
62
Calder, 465 U.S. at 790 (“An individual injured in California need not
go to Florida to seek redress from persons who, though remaining in Florida,
knowingly cause the injury in California.” (emphasis added)).
63
See, e.g., Bancroft & Masters, Inc. v. Augusta Nat’l Inc., 223 F.3d
1082, 1087 (9th Cir. 2000) (stating that Calder requires that “the defendant is
alleged to have engaged in wrongful conduct targeted at a plaintiff whom the
defendant knows to be a resident of the forum state” (emphasis added)); IMO
Indus., Inc. v. Kiekert AG, 155 F.3d 254, 266 (3d Cir. 1998) (“[T]he plaintiff
must show that the defendant knew that the plaintiff would suffer the brunt of
the harm caused by the tortious conduct in the forum, and point to specific
activity indicating that the defendant expressly aimed its tortious conduct at
the forum.” (emphasis added)).
17
distinct from the requirement that the forum be the focal point of
the tortious activity because satisfaction of the latter will
ofttimes provide sufficient evidence of the former.
Lidov must have known that the harm of the article would hit
home wherever Revell resided. But that is the case with virtually
any defamation. A more direct aim is required than we have here.
In short, this was not about Texas. If the article had a
geographic focus it was Washington, D.C.
III
Our ultimate inquiry is rooted in the limits imposed on states
by the Due Process Clause of the Fourteenth Amendment. It is
fairness judged by the reasonableness of Texas exercising its power
over residents of Massachusetts and New York. This inquiry into
fairness captures the reasonableness of hauling a defendant from
his home state before the court of a sister state; in the main a
pragmatic account of reasonable expectations – if you are going to
pick a fight in Texas, it is reasonable to expect that it be
settled there. It is not fairness calibrated by the likelihood of
success on the merits or relative fault. Rather, we look to the
geographic focus of the article, not the bite of the defamation,
the blackness of the calumny, or who provoked the fight.
Revell also makes various evidentiary objections to the
affidavits introduced by the defendants to support their motions to
18
dismiss. We conclude that all of these lack merit, and the
district court did not abuse its discretion in rejecting them.64
Alternatively, Revell asks that we remand for further discovery,
but given the uncontroverted facts of the operation of Columbia’s
website, and lack of purposeful availment, we must decline to do
so.65
IV
In sum, Revell has failed to make out a prima facie case of
personal jurisdiction over either defendant. General jurisdiction
cannot be obtained over Columbia. Considering both the “effects”
test of Calder and the low-level of interactivity of the internet
bulletin board, we find the contacts with Texas insufficient to
establish the jurisdiction of its courts, and hence the federal
district court in Texas, over Columbia and Lidov. We AFFIRM the
dismissal for lack of personal jurisdiction as to both defendants.
AFFIRMED.
64
Coury v. Prot, 85 F.3d 244, 249 (5th Cir. 1996).
65
Alpine View Co. Ltd. v. Atlas Copco AB, 205 F.3d 208, 221 (5th Cir.
2000) (affirming denial of discovery that “could not have added any significant
facts” (internal quotation marks omitted)).
19